Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 1 of 16 PageID #: 7988
`Case 1:17-cv-00868—CFC-SRF Document 215-1 Filed 06/19/20 Page 1 of 16 PageID #: 7988
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`EXHIBIT 1
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`EXHIBIT 1
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`Case 1:17-cv-00868—CFC-SRF Document 215-1 Filed 06/19/20 Page 1 of 16 PageID #: 7988
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`EXHIBIT 1
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`EXHIBIT 1
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 2 of 16 PageID #: 7989
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`Case No. 17-cv-868-CFC-SRF
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`Plaintiffs,
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`Defendant.
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`UNIVERSITY OF MASSACHUSETTS
`and CARMEL LABORATORIES, LLC,
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`v.
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`L’ORÉAL USA, INC.,
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`UNIVERSITY OF MASSACHUSETTS AND CARMEL LABORATORIES, LLC’S
`FIRST SET OF REQUESTS FOR PRODUCTION OF DOCUMENTS TO DEFENDANT
`L’OREAL USA, INC.
`Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Plaintiffs University
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`of Massachusetts (“UMass”) and Carmel Laboratories, LLC (“Carmel Labs”) hereby request that
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`Defendant L’Oréal USA, Inc. (“L’Oréal”) produce the following documents and things at the
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`office of Susman Godfrey L.L.P., 1301 Avenue of the Americas, 32nd Floor, New York, NY
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`10019, or at such other mutually agreed upon place, within 30 days hereof and in the manner
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`required by the Federal Rules of Civil Procedure.
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`DEFINITIONS
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`1.
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`The term “UMass” refers to the University of Massachusetts, including any of its past
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`and present affiliates, operating divisions, campuses, subsidiaries, directors, officers,
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`agents, employees, representatives, and all persons acting on its behalf.
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`2.
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`The term “Carmel Labs” refers to Carmel Laboratories, LLC, including any of its past
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`and present affiliates, operating divisions, parent corporations, subsidiaries, directors,
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`officers, agents, employees, representatives, and all persons acting on its behalf.
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`1
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`3.
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`The terms “Defendant,” “You,” “Your,” or “L’Oréal” shall refer to defendant L’Oréal
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`USA, Inc., and shall include L’Oréal S.A. as well as L’Oréal USA Inc.’s parent,
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`subsidiaries, affiliates, divisions, successors or assignees, and their respective
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`officers, directors, employees, consultants, representatives, and agents.
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`4.
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`The term “Present Lawsuit” refers to the case styled University of Massachusetts, et
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`al. v. L’Oréal USA, Inc., Case No. 1:17-cv-00868-CFC-SRF, pending in the United
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`States District Court for the District of Delaware.
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`5.
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`The term “Document” or “Documents” is used in the broadest sense permitted by the
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`Federal Rules of Civil Procedure and means the original (or any copy when originals
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`are not available) and any drafts or non-identical copies thereof, whether different
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`from the original because of interlineations, receipt stamp, notation of copy sent or
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`received or otherwise, of any email, instant message, voicemail, book, pamphlet,
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`periodical, letter, report, note, memorandum, record, minutes, calendar or diary entry,
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`transcript, study, compilation, analysis, tabulation, map, diagram, drawing, plan,
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`picture, summary, working paper, chart, paper, graph index, data sheet, data
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`processing card, computer printout, summary of a computer printout, tape, contract,
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`agreement, lease, ledger, journal, balance sheet, account, invoice, purchase order,
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`receipt, billing record, financial data, financial statement, file, diary, film, trip tickets,
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`telex, teletype or other messages, telegram, expense vouchers, instructions, bulletins
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`or any other writing or recording of information, as well as all tape recordings,
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`computer tapes, discs and other electronic or mechanical recordings, however
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`produced, maintained or reproduced, including information stored in or generated by
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`a computer whether or not ever printed out or displayed, within the possession,
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`2
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 4 of 16 PageID #: 7991
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`custody or control of Defendant or any of its officers, directors, employees, attorneys,
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`or other agents and/or representatives.
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`6.
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`The term “Person” means natural person, corporation, firm, company, sole
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`proprietorship, partnership, joint venture, association, institute, or other business,
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`legal or governmental entity or association, including any directors, officers,
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`employees, agents or representatives thereof.
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`7.
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`8.
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`The term “Agreement” means a contract, agreement, arrangement, or understanding,
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`formal or informal, oral or written, between two or more persons.
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`The term “Communication” refers to any transfer of information, oral or written, be it
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`in the form of facts, ideas, inquiries, opinions or otherwise, by any means, at any time
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`or place, under any circumstances, and is not limited to transfers between persons, but
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`includes other transfers, such as records and memoranda to the file.
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`9.
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`The phrase “Relating To” means discussing, describing, referring to, pertaining to,
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`containing, analyzing, studying, reporting on, commenting on, evidencing,
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`constituting, setting forth, considering, recommending, concerning, or pertaining to,
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`in whole or in part.
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`10.
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`The terms “Asserted Patents” and “Patents-in-Suit” shall mean United States Patents
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`No. 6,423,327 and 6,645,513.
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`The term “’327 Patent” refers to U.S. Patent No. 6,423,327.
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`The term “’513 Patent” refers to U.S. Patent No. 6,645,513.
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`The term “Prior Art” means any evidence qualifying as prior art to the Patents-in-Suit
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`11.
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`12.
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`13.
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`under 35 U.S.C. § 102 and/or 35 U.S.C. § 103.
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`14.
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`The terms “all” and “each” shall be construed as “and,” “each,” and “and/or.”
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`3
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 5 of 16 PageID #: 7992
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`15.
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`The term “any” should be understood in either its most or least inclusive sense as will
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`bring within the scope of the topic all responses that might otherwise be construed to
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`be out of its scope.
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`16.
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`17.
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`The term “including” shall mean including but not limited to.
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`The terms “relate,” “relating,” or “related” mean in any way, directly or indirectly, in
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`whole or part, relating to, concerning, referring to, discussing, mentioning, regarding,
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`pertaining to, describing, reflecting, containing, analyzing, studying, reporting on,
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`commenting on, evidencing, constituting, setting forth, considering, recommending,
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`modifying, amending, confirming, endorsing, representing, supporting, qualifying,
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`terminating, revoking, refuting, undermining, canceling, contradicting or negating.
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`18.
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`The terms “and” and “or” shall be construed disjunctively or conjunctively as
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`necessary to bring within the scope of these topics all information which might
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`otherwise be construed to be outside their scope.
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`19.
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`References to the singular shall include the plural, and references to the plural shall
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`include the singular as may be appropriate to construe the individual document
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`requests in their broadest form.
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`20.
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`The masculine form of a noun or pronoun shall be considered to include within its
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`meaning the feminine form of the noun or pronoun, and vice versa as may be
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`appropriate to make the individual document requests inclusive rather than exclusive.
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`INSTRUCTIONS
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`1.
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`Responsive documents shall be produced as they have been kept in the usual course
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`of business and shall not be shuffled or otherwise rearranged. Alternatively, you may
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`produce responsive documents organized and labeled to correspond to the enumerated
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`4
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 6 of 16 PageID #: 7993
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`requests of this demand. If any portion of any document is responsive to any request,
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`then the entire document must be produced. Documents that are found stapled,
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`clipped, or otherwise fastened together shall be produced in such form. If there is no
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`document responsive to any particular category, you shall so state in writing.
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`2.
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`If any portion of a document is responsive to an individual document request, then the
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`entire document shall be produced. If the document contains privileged material,
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`produce the entire document with the privileged material redacted, noting the
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`redactions on the face of the document.
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`3.
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`If information stored in, or accessible through, computer or other data retrieval
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`systems is produced, it must be accompanied with instructions and all other materials
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`4.
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`5.
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`necessary to use or interpret such data.
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`All documents which cannot be legibly copied should be produced in their original
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`form.
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`Each individual document request set forth herein shall be construed independently
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`and not with reference to any other request for purposes of limitation unless a
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`particular request so specifies.
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`6.
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`Where specific documents are listed as part of a general category of documents, then
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`such listed documents as well as all other documents falling within such general
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`category shall be produced. If any responsive document is withheld under a claim of
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`privilege, You shall furnish a list specifying each such document and setting forth the
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`following information: (i) the date of the document; (ii) the number of pages of the
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`document; (iii) the name and last known address of each person who prepared or
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`participated in the preparation of the document; (iv) the name and last known address
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`5
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 7 of 16 PageID #: 7994
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`of each addressee or other person to whom the document, or any part thereof, was
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`sent or to whom the document or its contents, or any part thereof, was disclosed; (v) a
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`summary of the general subject matter of the document (and such other information
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`as is necessary to identify the document such as whether the document is a letter or
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`memorandum); (vi) a statement of the basis upon which the asserted privilege is
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`claimed; and (vii) the individual document request herein to which the document is
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`responsive. If no documents are withheld under a claim of privilege, so state. Any
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`document or part of a document withheld under a claim of privilege must be
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`preserved.
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`7.
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`If any document responsive to this request once existed but has been destroyed or
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`discarded, or is otherwise not capable of being produced, You shall furnish a list
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`specifying each such document and setting forth the following information: (i) the
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`date of the document; (ii) a description of the subject matter of the document; (iii) the
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`name and last known address of each person who prepared or participated in the
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`preparation of the document; (iv) the name and last known address of each addressee
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`or other person to whom the document, or any part thereof, was sent or to whom the
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`document or its contents, or any part thereof, was disclosed; (v) the name and last
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`known address of any person not covered by items (iii) and (iv) who had possession,
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`custody or control of the document or a copy thereof; (vi) the date on which the
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`document was destroyed or discarded and a statement of the reasons why the
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`document was destroyed or discarded or why such document is not capable of being
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`produced; and (vii) the individual document request herein to which the document is
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`responsive.
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`6
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 8 of 16 PageID #: 7995
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`8.
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`9.
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`Unless otherwise specified, the documents requested herein are documents prepared,
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`written, sent, dated, received, or in effect at any time on or after October 26, 1998.
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`This request for documents shall be deemed continuing in nature so as to require
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`prompt supplemental responses in accordance with Rule 26(e) of the Federal Rules of
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`Civil Procedure in the event You become aware of, or acquire within Your
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`possession, custody, or control, additional responsive documents at any time
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`hereafter.
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`REQUESTS FOR PRODUCTION
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`REQUEST FOR PRODUCTION NO. 1: All documents mentioning or concerning the Patents-
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`in-Suit or their applications, including parent, divisional, continuation, or continuation-in-part
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`applications, whether or not they mature into patents.
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`REQUEST FOR PRODUCTION NO. 2: All documents concerning Your knowledge or
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`awareness of the Patents-in-Suit, including documents indicating when You (including any
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`employee, contractor, representative, or agent) became aware of the Patents-in-Suit.
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`REQUEST FOR PRODUCTION NO. 3: All documents and things on which You rely or
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`intend to rely to assert or establish that Your infringement of the Patents-in-Suit is not willful.
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`REQUEST FOR PRODUCTION NO. 4: All documents concerning Your policies or practices
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`concerning patent clearances, right-to-use opinions, or other mechanisms to avoid Your
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`infringement of patents.
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`REQUEST FOR PRODUCTION NO. 5: All documents relating to the methodology used by
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`You to determine value or royalty rates for patents or other proprietary technology, for licensing,
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`tax, accounting or any other purpose.
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`REQUEST FOR PRODUCTION NO. 6: All documents and things created or gathered prior to
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 9 of 16 PageID #: 7996
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`destruction and retention policies.
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`REQUEST FOR PRODUCTION NO. 21: For the years 2009 to the present, all of Your annual
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`reports, required financial filings and other financial statements, including but not limited to
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`statements of operations, profit and loss statements, income statements, balance sheets,
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`statements of changes in retained earnings, and internal management reports and notes thereto,
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`whether the notes are for internal or external report purposes.
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`REQUEST FOR PRODUCTION NO. 22: All documents that refer or relate to U.S. Patent
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`Application No. 10/701,495, 11/152,707, 12/649,367.
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`REQUEST FOR PRODUCTION NO. 23: All documents that refer or relate to U.S. Patents
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`No. 9,018,177; 9,023,826; 9,072,919; and 9,107,853.
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` REQUEST FOR PRODUCTION NO. 24: All documents relating to any communications
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`between You and Carmel Labs, UMass, or the inventors of the Patents-in-Suit.
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`REQUEST FOR PRODUCTION NO. 25: All documents relating to any testing You have
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`performed regarding penetration of adenosine into the skin.
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`REQUEST FOR PRODUCTION NO. 26: All Your issued patents or patent applications that
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`relate or refer to adenosine.
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`REQUEST FOR PRODUCTION NO. 27: All documents in Your possession or control
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`relating or referring to adenosine, including but not limited to documents related to Your
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`decision to include adenosine as an ingredient in Your products.
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`REQUEST FOR PRODUCTION NO. 28: All documents relating to any testing You have
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`performed relating to or regarding adenosine, including but not limited to any communications
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`referring or relating to the results of such testing.
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`REQUEST FOR PRODUCTION NO. 29: All documents relating to Plaintiffs’ Interrogatories.
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 10 of 16 PageID #:
`7997
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`REQUEST FOR PRODUCTION NO. 30: For each product identified in response to
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`Interrogatory No. 3, provide a sample of that product as well as the product packaging, any
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`instruction that are provided to consumers with that product, and any marketing materials related
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`to that product.
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`REQUEST FOR PRODUCTION NO. 31: All documents referring or relating to your efforts to
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`market and/or sell products containing adenosine.
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`REQUEST FOR PRODUCTION NO. 32: All documents referring or relating to any benefit
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`from using adenosine on human skin.
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`REQUEST FOR PRODUCTION NO. 33: All documents relating or referring to an article
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`entitled “Formulation, characterization, and efficacy of an adenosine-containing dissolvable film
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`for a localized anti-wrinkle effect,” by J.Y. Legendre, I. Schnitzler, Q-Y. Li, C. Hausen, M.
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`Huart, G. S. Luengo, M. L. Abella, and M. Roreger.
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`REQUEST FOR PRODUCTION NO. 34: All documents relating or referring to an article
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`entitled “Evaluation of anti-wrinkle efficacy of adenosine-containing products using the FOITS
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`technique,” by M.L. Abella.
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`DATED: July 15, 2019
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`Of Counsel:
`William Christopher Carmody
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`FARNAN LLP
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`/s/ Brian E. Farnan
`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`Telephone: (302) 777-0300
`Facsimile: (302) 777-0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw,com
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`11
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 11 of 16 PageID #:
`7998
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 12 of 16 PageID #:
`7999
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`document was destroyed or discarded and a statement of the reasons why the
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`document was destroyed or discarded or why such document is not capable of being
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`produced; and (vii) the individual document request herein to which the document is
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`responsive.
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`8.
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`Unless otherwise specified, the documents requested herein are documents prepared,
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`written, sent, dated, received, or in effect at any time on or after October 26, 1998.
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`9.
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`This request for documents shall be deemed continuing in nature so as to require
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`prompt supplemental responses in accordance with Rule 26(e) of the Federal Rules of
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`Civil Procedure in the event You become aware of, or acquire within Your
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`possession, custody, or control, additional responsive documents at any time
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`hereafter.
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`REQUEST FOR PRODUCTION
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`REQUEST FOR PRODUCTION NO. 38: Documents sufficient to show all sales, cost, and
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`revenue information, by number of units sold and by dollars of revenue, for the Accused
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`Products, broken down by quarter, including all documents sufficient to explain any acronyms or
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`terminology employed by Your accounting system.
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`REQUEST FOR PRODUCTION NO. 39: Documents sufficient to show Your gross,
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`contribution, and operating profits and gross, contribution, and operating profit margins from
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`sales of the Accused Products.
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`REQUEST FOR PRODUCTION NO. 40: All documents that refer or relate to market surveys,
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`market analyses, market forecasts, and/or sales forecasts, including but not limited to documents
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`that relate to Your competitors in these markets, for the Accused Products. This Request includes
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`reports by external analysts or consultancies.
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 13 of 16 PageID #:
`8000
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`REQUEST FOR PRODUCTION NO. 41: All documents relating to market share, whether
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`Yours or of a competitor, of total products sold and total revenue in the markets for the Accused
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`Products.
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`REQUEST FOR PRODUCTION NO. 42: All documents that refer or relate to Your strategic
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`plans, business plans, business strategies, licensing plans, licensing proposals, licensing
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`forecasts, prospectuses, market surveys, marketing strategies, market analyses, and/or marketing
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`forecasts of customer demand for the Accused Products.
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`REQUEST FOR PRODUCTION NO. 43: All licenses You hold relating to U.S. Patent Nos.
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`9,018,177; 9,023,826; 9,072,919; and 9,107,853; and all documents You received from L’Oréal
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`S.A. related to those patents, including but not limited to file histories and documents related to
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`any post-grant review or proceeding.
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`REQUEST FOR PRODUCTION NO. 44: All documents that refer or relate to customer or
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`clinical surveys or studies involving the Accused Products.
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`REQUEST FOR PRODUCTION NO. 45: All documents, including consumer surveys and
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`consumer questions submitted to You, discussing or showing how customers use or apply the
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`Accused Products.
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`REQUEST FOR PRODUCTION NO. 46: All documents, including product packaging,
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`websites, and videos, showing or instructing customers how to use the Accused Products.
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`REQUEST FOR PRODUCTION NO. 47: All documents relating to any price lists for any
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`Accused Product.
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`REQUEST FOR PRODUCTION NO. 48: All documents that constitute, evidence, or relate to
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`Your accounting practices pertaining to the Accused Products, including but not limited to Your
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`methods of accounting for revenues, costs and profits, methods of depreciation, allocation of
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 14 of 16 PageID #:
`8001
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`expenses, inventory measurements, profit allocation, and losses and assignments of debt.
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`REQUEST FOR PRODUCTION NO. 49: All expert reports and expert deposition transcripts
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`produced in the matter Liqwd, Inc. v. L’Oreal USA, Inc., No. 17-14 (JFB) (D. Del.).
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`REQUEST FOR PRODUCTION NO. 50: All documents that refer or relate to testing of any
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`Accused Product.
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`REQUEST FOR PRODUCTION NO. 51: All documents that refer or relate to promotional or
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`marketing materials for any Accused Product.
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`REQUEST FOR PRODUCTION NO. 52: All documents that tend to prove or disprove
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`whether any Accused Product, or any ingredient of any Accused Product, causes dermal cell
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`proliferation.
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`REQUEST FOR PRODUCTION NO. 53: All documents relating to Your decision to include
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`adenosine in certain skincare products “[f]ollowing” the Korean Food & Drug Administration’s
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`declaration “that, when used to ‘help improve wrinkles,’ products containing 0.04% adenosine
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`were exempted from [certain] submission requirements,” as described in Your supplemental
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`objections and response to Interrogatory No. 6.
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`REQUEST FOR PRODUCTION NO. 54: All documents that tend to prove or disprove that
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`each Accused Product contains at least one skin conditioning agent.
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`REQUEST FOR PRODUCTION NO. 55: Documents sufficient to show all skin conditioning
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`agents of which You are aware.
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`REQUEST FOR PRODUCTION NO. 56: All documents that tend to prove or disprove that
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`each Accused Product contains at least one transdermal agent and/or penetration enhancer.
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`REQUEST FOR PRODUCTION NO. 57: Documents sufficient to show all transdermal agents
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`and/or penetration enhancers of which You are aware.
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 15 of 16 PageID #:
`8002
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`REQUEST FOR PRODUCTION NO. 58: All documents that tend to prove or disprove that
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`each Accused Product is intended for use by human mammals.
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`REQUEST FOR PRODUCTION NO. 59: All documents that tend to prove or disprove that
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`each Accused Product reduces one or more of wrinkling, roughness, dryness, or laxity when
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`topically applied to the skin.
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`REQUEST FOR PRODUCTION NO. 60: All documents that tend to prove or disprove that
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`each Accused Product causes adenosine to reach the dermal layer in a concentration of
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`approximately 10-3 to 10-7.
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`REQUEST FOR PRODUCTION NO. 61: All documents that tend to prove or disprove that
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`each Accused Product is intended to be applied to unbroken skin.
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`REQUEST FOR PRODUCTION NO. 62: All documents that tend to prove or disprove that
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`You direct customers to apply the Accused Products topically to their skin.
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`REQUEST FOR PRODUCTION NO. 63: Documents sufficient to identify any ingredient,
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`formula, or product codes in any documents produced in this litigation, including but not limited
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`to the “RM” codes used in Your Research & Innovation documents.
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`REQUEST FOR PRODUCTION NO. 64: Documents sufficient to identify when the following
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`brands were formed, acquired, or sold by You: Biotherm; Decleor; Garnier; Giorgio Armani; IT
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`Cosmetics; Kiehl’s; La Roche Posay; Lancome; L’Oreal Paris; Maybelline; NYX; Shu Uemura;
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`SkinCeuticals; The Body Shop; Vichy; Yves Saint Laurent.
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`REQUEST FOR PRODUCTION NO. 65: All documents produced, in any litigation or
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`investigation, to any government entity or agency that refer or relate to the Accused Products.
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`REQUEST FOR PRODUCTION NO. 66: All documents referring or relating to drivers of
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`demand for the Accused Products, including but not limited to studies or surveys of consumer
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`10
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`Case 1:17-cv-00868-CFC-SRF Document 215-1 Filed 06/19/20 Page 16 of 16 PageID #:
`8003
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`preferences and consumer purchase decisions.
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`REQUEST FOR PRODUCTION NO. 67: Documents sufficient to identify any convoyed
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`sales, related products, or products that are sold with or alongside the Accused Products,
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`including sales, cost, and revenue information for those products.
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`REQUEST FOR PRODUCTION NO. 68: All documents referring or relating to any
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`customary industry royalty rates or portions of selling price or profit that are typically used for
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`patent licenses in the market for the Accused Products.
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`REQUEST FOR PRODUCTION NO. 69: All documents referring or relating to Your patent
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`clearing policies or procedures that apply to topically applied skincare compositions.
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`DATED: December 18, 2019
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`Of Counsel:
`William Christopher Carmody
`Tamar E. Lusztig
`Beatrice C. Franklin
`SUSMAN GODFREY L.L.P.
`1301 Avenue of the Americas, 32nd Floor
`New York, NY 10019
`Telephone: (212) 336-8330
`Facsimile: (212) 336-8340
`bcarmody@susmangodfrey.com
`tlusztig@susmangodfrey.com
`bfranklin@susmangodfrey.com
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`Respectfully submitted,
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`FARNAN LLP
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`/s/ Brian E. Farnan
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`Brian E. Farnan (Bar No. 4089)
`Michael J. Farnan (Bar No. 5165)
`919 North Market Street, 12th Floor
`Wilmington, DE 19801
`Telephone: (302) 777-0300
`Facsimile: (302) 777-0301
`bfarnan@farnanlaw.com
`mfarnan@farnanlaw.com
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`11
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